Smith v. Centennial Eureka Mining Co.

75 P. 749 | Utah | 1904

Lead Opinion

BARTCH, J.,

after a statement of the case as above, delivered the opinion of the court.

At the conclusion of the evidence in this case the defendant railway company requested the court to instruct the jury to return a verdict in its favor. The refusal of this request, among other things, has been assigned as error.

The appellant railway company contends that the jury ought to have been so instructed, for the reason, as is insisted, that the uncontradicted evidence shows the deceased was guilty of contributory negligence which was the proximate cause of his injury and death. It is argued that the deceased was negligent in failing to observe and in deliberately violating the rules and instructions provided and given by his employer for his guidance and safety in the performance of his work.

The contention of the respondents on this point appears to be that the relation of master and servant did not exist at the time of the accident between the appellant railway company and the deceased, and that, therefore, if the railway company was negligent in furnishing cars with defective braking apparatus, and the death resulted from handling such cars, the railway company can not, for the purpose of avoiding liability for its negligence, avail itself of a violation of the rules of the mining company. Such, at least, seems to be the result of the contention of the respondents.

That the braking appliances of the two cars in question were greatly defective is manifest from the evidence of. the plaintiffs, as shown in the statement of the case, and, while this is contradicted by evidence of the defendants, the jury must have found that the appliances were defective, and that the railway company was negligent in placing such ears upon the side track, and such finding, based, as it is, upon conflicting evidence, is conclusive on us upon such question. "Whether the allegations of the complaint, as.well as the evidence introduced by the plaintiffs, show such obvious defects in the braking appliances that the deceased ought to have observed them, and have refrained from attempting to handle the cars on the steep grade, and that his failure to do so rendered him guilty of contributory negligence fatal to a recovery for his death, is a question unnecessary to decide. It may be said, however, that the complaint itself shows that a mere cursory examination would doubtless have revealed the dangerous condition of the braking appliances. Was, then, the deceased himself so negligent, under the circumstances, as to preclude his heirs from recovering as against his employer?

Under agreement with his employer, the railway company' placed the cars which he was to operate upon the side track. When so placed they were under his exclusive charge. It seems he was both conductor and brakeman respecting the movements of those cars. That his employment was more or less hazardous was apparent from the character of the grade and the nature of the labor to be performed. Ail this was obvious, and must have been known by the deceased. Upon engaging to perform the work, he assumed the risks ordinarily incident to the employment. Having entered into such a service, it was his undoubted duty, aside from any specific instructions, not only for his own safety, but also for the protection of the property of his employer, before attempting to run the cars down to the ore chute to inspect the appliances with which he expected to handle and stop them. Had he done this, it seems clear that he might have avoided the accident; for, if the defects existed, they were, according to the plaintiffs’ evidence, ’ open, obvious, and discoverable upon slight inspection. Notwithstanding his plain duty, however, to inspect the ears and their appliances, even without special instructions to do so, his employer did give the deceased, upon entering the service, special instructions, and adopted rules for his guidance and safety, which were to the effect that the employee should never attempt to run down on the side track more than one car at a time; that before letting a car down he should always examine it, and see that it was in condition to be handled, and that the brakes were kept set on the empties above it; that before loading a ear he should inspect the brakes and appliances, and see if there were any defective parts, and, if there were, to report to the mine office; and that he should take care to use track blocks across the track where the last empty car stood, and also at the orehouse to stop the car to be loaded. These instructions were promulgated for the employee’s own_safety as well as for the protection of the property of his employer, and the law is well settled that an employer, engaged in a hazardous business, has the right, and that it is his duty, to formulate reasonable rules to enhance its orderly and safe conduct, so as to secure protection to property and the public, and to reduce the risks assumed by the employees.

1 In this case the employer not only promulgated reasonable and proper rules, but, upon.tbe employee entering into tbe service, imparted to bim special instructions for tbe safe management and performance of tbe business. Tbe rules and instructions, made and given for tbe employee’s special benefit and safety, were by him, on tbe occasion of the accident, as appears from the plaintiffs’ own testimony, wholly disregarded; for that testimony, which is binding upon tbe respondents, whatever, under tbe circumstances, tbe real fact may be, discloses, not only that, in violation of tbe positive instructions of tbe master, tbe deceased ran two cars coupled together down the grade instead of one, as instructed, but also that tbe braking appliances were so grossly defective as to be practically useless, a condition which required but slight inspection to reveal, and that no inspection could possibly have been made before tbe moving of tbe cars and tbe defects remain undiscovered. Nor was any report, so far as shown in evidence, made to tbe mine office. Thus, tbe evidence shows such a palpable disregard by tbe employee of tbe rules and instructions of the employer as clearly' absolves tbe employer, the mining company, from all liability to tbe plaintiffs for tbe unfortunate consequences of tbe disobedience of the employee; tbe proof clearly showing that tbe want of tbe employee’s observance of tbe rules and instructions were tbe proximate cause of tbe resultant injuries and death.

It is plainly indicated by tbe evidence that tbe deceased made no effort to discover an open peril. There is nothing to show that be even made use of any brake blocks, while it is manifest that, in total disregard of bis employer’s rule, be attempted to move two cars down tbe steep grade, with a braking apparatus wholly insufficient to bold one, and tbe insufficiency of which could have been ascertained upon slight inspection, in accordance with bis instructions. Tbe conclusion, from tbe evidence, is irresistible that tbe lamentable misfortune was tbe result of bis own beedlessness, being directly attributable to bis disobedience of tbe rules and instructions of Ms employer at a time when, so far as appears from the record, there was the existence of no emergency which required hasty action. This is so patent from the proof as to leave no room for reasonable minds to differ in relation thereto. Such disobedience, under the circumstances, rendered him guilty, in law, of contributory negligence, and such negligence, without doubt, was the proximate cause of his death. Clearly, therefore, no action is maintainable by the heirs against his employer, the mining company. The rules and instructions were proper and reasonable, and it was the duty of the deceased, under the law, to obey them, and, having failed to do so, his employer was released from liability for the injuries which were the direct result of such failure.

“It is,” says Mr. Beach, “contributory negligence of an aggravated character on the part of an employee to disobey reasonable rules and regulations enacted to protect him from injury. If he is injured through such a gross and unwarranted disregard of his own safety, his remedy is gone. Such negligence is the most pronounced contributory negligence possible. It properly leaves the person injured by it wholly remediless.” Beach, Contr. Neg., section 373.

In Scott v. Eastern Ry. Co. (Minn.), 95 N. W. 892, the Supreme Court of Minnesota, speaking through Mr. Justice Collins, said: “The universally established doctrine is that if an employee, of ordinary intelligence, is injured by reason of his disobedience or disregard of reasonable rules and orders issued by the master, and brought to his attention in ample time, and opportunity being given in which to obey, he cannot recover, as against the master, for an injury received, when a violation of a rule is the proximate cause of his injury. He will, as a matter of law, be deemed guilty of contributory negligence.”

The same court, in Nordquist v. Great Northern Ry. Co. (Minn.), 95 N. W. 322, said: “An employee is bound to obey all of tbe reasonable rules of bis employer with reference to the conduct of bis business. Disobedience of sucb rules, if it contributes directly to tbe injury of tbe employee, conclusively charges him with negligence, which will bar any recovery of damages for bis injury.”

In Karrer v. D. G. H. & M. R. R. Co., 76 Mich. 400, 43 N. W. 370, where tbe employees were acting under printed orders relating to tbeir safety, which the plaintiff failed to obey, the court said: “It was the plaintiff’s duty to examine into the coupling arrangements of both cars before he attempted to couple them, and, as they were only a rod apart at most before he started the train back, and as- he says tbe defect was visible at once to any one looking, one or two seconds would bave furnished all tbe time needed to satisfy himself, bad be been acting under any one else’s orders and not for himself ; but as be had personal direction of the engineer’s movements, and could move when he pleased, the case, as he presents it, was an aggravated one of the grossest carelessness, for which he, and no one else, was responsible.”

So, in La Croy v. N. Y., L. E. & W. Ry. Co., 132 N. Y. 570, 30 N. E. 391, the plaintiff, who had been injured, was employed as a brakeman on defendant’s freight train. One of the printed rules required brakemen, before starting, to test the hand brakes. This was not done on the occasion of the accident which caused the injury for which recovery was sought. The court, bolding that disobedience of the rules caused the accident, and that, therefore, the plaintiff was not entitled to recover, said: “In the absence of printed instructions, the plaintiff and the rest of the train crew well knew that tbeir duty to their employer, and a proper regard for their own personal safety, made it incumbent •upon them to know, before reaching the point where the steep descent began, which continued for nearly six miles, whether tbe train contained tbe requisite number of brakes to properly check its speed, and as a necessary consequence the plaintiff can not require the defendant to mate good to him the damages resulting from an injury which could not have been sustained had he and his coemployees observed that reasonable care and caution which their experience suggested and the situation demanded.”

In Darracott v. C. & O. R. R. Co., 83 Va. 288, 2 S. E. 511, 5 Am. St. Rep. 266, where the injury complained of was a result of a disregard of rules, it was said: “At all events, the evidence shows that the dangerous condition of the coupling was obvious, and that the plaintiff, in violation of the rules of the company, voluntarily put himself in a position of danger, in consequence of which he was injured: Under these circumstances in the eye of the law, he was the author of his own misfortune; that is to say, his negligence, or, what is the same thing, his want of ordinary care and caution, was the proximate cause of the injury complained of: The action is therefore not maintainable.” C. & A. R. R. Co. v. Bragonier, 119 Ill. 51, 7 N. E. 688; Bennett v. Northern Pac. R. R. Co., 2 N. D. 112, 49 N. W. 408, 13 L. R. A. 465; Higgins v. Southern Pac., 26 Utah 164, 72 Pac. 690; Butte v. Pleasant Valley Coal Co., 14 Utah 282, 47 Pac. 77; Burgess v. R. R. Co., 17 Utah 406; Ill. Cent. R. R. v. Jewell, Adm’x, 46 Ill. 99, 92 Am. Dec. 240.

2 The heirs of the deceased, being thus precluded from a recovery against the employer because of the contributory negligence of the deceased, have they a right of recovery against the railway company who furnished the cars? It seems, as to this question the respondents assume the position that the railway company can not rely upon the contributory negligence of the deceased, because at the time of the accident he was not in its employ, and its rules were not violated. They claim that when the deceased entered the services of the mining company, and received its instructions, a contract relation was created between them, and that the railway company,. being no party to the contract, can take no advantage of its breach by the deceased.

The answer to this is that this action is one sounding in tort against the railway company, and not upon contract, to recover for the death of the deceased, and that the proof shows such death was caused by the deceased’s own wrong, no act of gross or wanton negligence on the part of the railway company being charged. Such being the ease, the tortious acts or negligence of the railway company, if it was guilty of any, can not be made the basis of a recovery for injuries resulting from the wrong or negligence of the deceased. Clearly, if the unfortunate occurrence had resulted but in injuries, and not in death, and the deceased had brought an action against the railway company to recover damages for negligence, proof that his own negligence, and not that of the company, caused his injuries, would have been a complete defense, and where, as in this case, the recovery is sought for the death, the heirs are in no better situation than the deceased himself would be if living. Wherever contributory negligence is established as the proximate cause of an injury it is always a complete defense, and bars a recovery for such injury. In such case, the maxim, “Volenti non fit injuria,” applies.

The existence of contract relations is not essential to an invoking of the rule as to contributory negligence. The right to the application of that rule is founded upon the principle that no person can be permitted to make his own wrong, or his own voluntary act, whether tor-tious or not, the basis for a recovery against another. Where an injury results to a person because of his own wrongful act or violation of duty, neither he nor his heirs can recover damages from another for such injury. In such a case no action is maintainable. One who, through want of ordinary care, inflicts a wound-upon his own body, must be content to bear the suffering and the loss, and neither he, nor, in the event of death, his heirs, have any redress. ‘' Contributory negligence, in its judicial sense, is usually the personal default of the plaintiff himself. The general rule is that when the plaintiff’s own want of ordinary care is a proximate canse of the injury he sustains he cannot recover damages from another therefor. ’ ’ Beach, Contr. Neg, section 100.

Mr. Thompson, in his Commentaries on the Law of Negligence, vol. 1, see. 185, says: “Where a person, by his own deliberate act, brings an injury upon himself, he can not make it the ground of recovering damages against another, where he is not impelled thereto, by some imminent danger, or by some exciting or exasperating circumstances, for which that other is responsible. The principle that a person can not make his own wrong or his voluntary act, whether wrongful or not, the ground of recovering damages from another, has found an expression in the maxim, “ Volenti non fit injuria.’ ”

In Railroad Co. v. Aspell, 23 Pa. St. 147, 62 Am. Dec. 323, Mr. Chief Justice Black said: “It has been a rule of law from time immemorial, and is not likely to be changed in all time to come, that there can be no recovery for an injury caused by the mutual default of both parties. When it can be shown that it would not have happened except for the culpable negligence of the party injured, concurring with that of the other party, no action can be maintained. ’ ’ 1 Thomp. Comm. Neg. section 186; Wharton, Neg. section 73; 2 Jaggard on Torts, 960; Ray, Neg. Imp. Dut. Pass. 669, 670; Texas & P. Ry. Co. v. Moore (Tex. Civ. App.) 27 S. W. 962; New York, C. & St. L. R. Co. v. Perriguey, 138 Ind. 414, 34 N. E. 233, 37 N. E. 976; Lewis v. Flint & P. M. Ry. Co., 54 Mich. 55, 19 N. W. 744, 52 Am. Rep. 790; Langridge v. Levy, 2 M. & W. 519; Carter v. Towne, 98 Mass. 567, 96 Am. Dec. 682; Crain v. Petrie, 6 Hill 522, 41 Am. Dec. 765.

Viewing the pleadings and the evidence contained in the record thus in the light of the law applicable to this case, we are of the opinion that the plaintiffs have shown no right to recover damages against the railway company, that the contributory negligence of the deceased is available to that company as a defense to this action, and that the court erred in refusing to instruct the jury to return a verdict as requested by the defense. This disposes of the case, and it is therefore of no importance to pass upon the other questions presented.

The judgment must be reversed, with costs, and a pew trial granted. It is so ordered.

BASKIN, C. J., concurs.

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Concurrence Opinion

McCARTY, J.,

concurs in the order of reversal, but dissents from the grounds stated and the reasons given therefor in the majority opinion.

There are three reasons given in the foregoing opinion why this ease should be reversed. The first is that the facts, over which there is no substantial conflict in the evidence, considered in its entirety, show that the alleged defective condition of the braking apparatus of the two cars which John P. Smith, the deceased, was moving at the time he was killed, was so open, plain, and obvious that he, by the exercise of ordinary care and diligence, could have discovered it before he started to move the cars, and therefore he was guilty of contributory negligence; second, that his failure to observe and follow, on that occasion, the instructions given him by his superiors not to move more than one car at a time, also constituted contributory negligence on his part; and, third, that the court erred in refusing, after the evidence was all in, to peremptorily instruct the jury to return a verdict in favor of defendant railway company.

I am unable to agree with my brethren not only as to the facts in the case, but as. to the law applicable to the facts. The record shows that the two empty cars, at the time John P. Smith started to move or run them down to the ore chute, were standing on a descending grade, with the brakes sufficiently set to hold them in place on the track without pulling on their couplings or the couplings of the cars standing above them and to which they were attached. The great preponderance of the evidence shows that the moment a car standing on the track, at the point where these cars were taken from by the deceased on the day of the fatal accident, is uncoupled from the one above it, and the brakes loosened or thrown off, it would start of its own accord. T. D. Fenton, the conductor under whose directions the cars in question were left on the switch track at the point from where they were moved by the deceased, just before his death, was called by the appellant, and testified on this point as follows: “The surface o'f the track which leads along these orehouses is on an incline to the east. ... We put the cars on to this side track from the west end. . . . This was done on May 4, 1901, the day of the accident to Mr. Smith. We pushed twelve empty cars on to the side track that day. . - . . The grade was such that it became necessary to apply the brakes to keep the cars from running down. . . . The brakes are first applied on the east end, towards the ore chute. This is done so as to keep the slack against the other cars, in order ... to enable the Centennial Eureka Mining Company’s men to uncouple the car. The hand brake was applied and set first on the first car, and then in regular order till the last car was reached, from the east to the west, up the incline — up towards the switch. When the brakes are all set, each car on the incline was held by the handbrake power. It was not held at all on the incline by the couplings to the adjoining cars. ... If the brakes were off the lower car, and the car was pulling on the coupling, you could not uncouple it. If the brakes were off the two lower ears, and a string of cars were standing on that incline, you could not uncouple these two cars from the remainder. I know of my own knowledge that when I left those cars that morning (May 4, 1901) ... on this side track above the Centennial Eureka orehouse that the brakes were on and the pressure applied on every one of those cars.”

J. A. Houtz, a brakeman under Fenton, testified' that the brakes were set on the lower or first end, and then on the other ears higher np in succession; that “the brakes were so set in order that Smith would have no trouble in getting the various cars off, for, if the slack was allowed to run out, it would be impossible for him to get the cars off, because the weight of the cars would he drawn against the draw rod, thereby preventing the raising of the lock. .' . . As the cars were upon the side track, and the brakes set in the manner I have described, our custom was that each individual car should he held in place by its own brakes. ' If a brake on any particular car would not hold it, the result would be that the minute you move the car in front away it — the car ■with no brake — would pull down on the remaining cars, and you could not cut it off from them. ... It was necessary on such a grade as that to apply the brakes in order to stop and hold the car.”

William Freckleton, a witness for the plaintiffs testified that a car would not stand on this incline ‘ ‘ unless it was braked or blocked.” The record also shows that two days after the accident the two cars mentioned were taken bv appellant and replaced on the track aboye the ore chute on the same grade and in the vicinity of where they were standing when the deceased started to move them at the time he was killed.

L. D. Dickenson testified that one Herbert Hayes let these two cars down over the same track by the hand brakes. “He let down only one car at a time. He let down the head one first. ... He released the brake, and the car started. . . . Stopped it once on the way down. . . . Then he went back and got the other car, and went through the same performance . . . When we went back to start the hind car we released the brake, and it started immediately.”

Herbert Hope, another of the appellant’s witnesses testified, in part, as follows: “I got up on the car lower down on the grade — my impression is that it was 678— and kicked the brake off. . . . I let the brake off and the car started, and I let it down the grade. I then went back to the lower car. When I got to it — car 631 — I got np and released the brake. . . . The car started immediately when the brakes were let off. ’ ’

Appellant concedes that cars standing on this incline, when nnconpled and the brakes thrown off, wonld start without any propelling force except that furnished by their own weight. Counsel for appellant in their brief say: “It is apparent from the great weight of the evidence that the ears wonld set themselves in motion if the brakes were released and if they were nn-conpled. ’ ’

There is a' sharp conflict in the evidence respecting the condition and general appearance of these two cars immediately after the accident. Upon one point there is but little, if any, conflict in the.testimony, and that is the alleged defective condition of the braking apparatus was discovered by the parties making the examination either by getting upon the cars and testing the brakes-by applying and setting them, or by having the defects pointed out to them by parties who had .made the tests. Regarding the general appearance of the cars, B. L. Short testified, in part as follows: “I got upon car No. 678, and tried to set the brake. The shoes would make no effect upon the brake wheel, and I got no pressure. I got down, and the shoes ... on that car were in their places. I noticed their thickness, and they were' apparently in pretty good shape. So far as the shoes were concerned, they looked all right.”

William Freckleton, another witness for plaintiffs, testified, as follows: “The mere fact that the shoes on 631 were worn thin is no defect so long as they took effect ; ’ ’ and again, ‘ ‘ I didn’t notice what caused the brake to get out on one side, and the brake shoe to pass on the flange of the wheel. All the other brake shoes except this one were in their proper place on car 631. All were good shoes, not broken — good for the purpose of pressure. The only thing wrong with the car on Saturday night (fee day of the accident) was the brake shoe pressing on the flange. With that exception the braking apparatus on that car was in good condition, so far as I know.” He also testified that the brake shoes on car 678 were in fair condition.

The witness Bonney, in giving his testimony, said: “I examined the brake shoes upon car 678. They were all in very good condition except this one, that was in the brakehead, and it was in fair condition. It had been worn.”

A. J. Bauer, a witness for defendant, testified that he examined the brakes on these two cars, and that “they were in good condition;” that “they worked first class.”

T. D. Fenton, the conductor, testified that he made a very thorough test and examination of the braking apparatus on these two cars, and “found that it worked all right.” Again he says: “I inspected the entire braking apparatus on each car, and found that its condition was good.” Several other witnesses for the appellant testified that they examined and tested the brakes on these cars, and found them to be in good condition.

Now, it must be borne in mind that John P. Smith, the deceased, had no such opportunity for examining and testing these brakes as the witnesses in the case. When the tests were made by the witnesses the cars were standing on comparatively level track, and it was not necessary to apply the brakes in order to hold the cars in place while the tests were being made.

The foregoing testimony tends to show that the alleged defective condition of the brakes was not really discernible without making a physical test by applying or setting them. And there also is evidence that this could not be done while the cars were standing on the incline above the ore chute, for the reason that they would start to run down the grade the moment the brakes were loosened and thrown off and the cars uncoupled. This evidence, considered in connection with the fact that the brakes were set and applied on these cars at the time the deceased uncoupled them from the car standing immediately above, which fact was at least an indication that the brakes were not disabled, creates too xnnch uncertainty as to whether or not deceased knew, or in the exercise of ordinary care and diligence could have known of the alleged defects before he started to move the cars, for this or any other court to say, as a matter of law, that he was guilty of contributory negligence because he moved these ears in their alleged disabled condition down the track on the occasion referred to.

Appellant contends, and this court in the opinion written by Mr. Justice BARTCH in the case holds, that the deceased was guilty of contributory negligence in moving two cars at a time down the incline in violation of the instructions given him by those under whom he was working, which the railway company can successfully plead as a defense in this case.

The evidence, as I view it, is far from conclusive that the act of moving the two cars at the same time, on the occasion referred to, was in and of itself negligence per se. In fact there is, evidence in the record that tends to show that it was not negligence. When the employees of the railway company removed the two cars in question from where Smith was killed, they took them, coupled together, back up the main line, where they were “kicked” onto the switch by the engine, and set going down the incline above the ore chute at the rate of eight miles per hour, and were controlled and stopped by one man on the steepest part of the grade by the application of the brakes on the head car only, and a little later they were taken down, one at a time, to the ore chute, loaded with ore, and then let down the track below the ore house by means of the hand brake. From the orehouse down the grade is almost twice as great as it is above. And, further, some five or six of appellant’s employees, men of experience in this kind of work, testified in the case, and not one of them so much as intimated that it was extra hazardous to let two empty cars down the incline above the ore chute at the same time, but, on the contrary, three of them showed by actual demonstration that it was not.

I know of no rule or principle of law that would permit the appellant, by virtue of instructions given the deceased by the mining company respecting his duties in the handling of the cars, to which the railway company was in no way privy, to shift upon him the legal duty it was under to inspect and use ordinary care to see that its cars were in reasonably good condition before placing them upon the switch track to be loaded with ore. The deceased in the handling of these cars owed the railway company no greater duty than his master, the Centennial Eureka Mining Company, did, and it must be conceded that the only duty the mining company owed was to exercise that same degree of care and caution as is usually observed by men of ordinary prudence engaged in this kind of work, and this is all that appellant could legally exact from the deceased, notwithstanding the mining company may have, through a superabundance of caution, instructed its employees to exercise extraordinary care in the handling of these cars. Suppose, for example, the superintendent of the mining company had given the deceased positive instructions never to take a loaded car down the incline below the orehouse without first making a personal inspection of the track, and through some inadvertence or oversight on the part of Smith he had omitted to make the inspection, and had taken a car down loaded with valuable ore, and ran into an open switch, which the employees of the railway company had failed to close, or into an obstruction which they had left upon the track, under circumstances showing negligence on the part of. the railway company, and ditched the car, and a portion of the ore was lost and Smith severely injured thereby, would it be seriously contended that because Smith had failed to perform a duty that devolved upon the railway company that it could successfully interpose and plead as a defense, in a suit by the mining company for the loss of its ore, that Smith had failed to observe the instructions given by his master, and perform a duty that legally devolved upon the railway company? I think not, because there can be no question but what the mining company, under these circumstances, could recover. Yet, if the doctrine announced in the prevailing opinion is the law, Smith could not recover for his injuries resulting from the ditching of the car. In other words, Smith owed the railway company, with which he had no contractual relations whatever, a greater duty than did his master, between whom and the railway company such relations existed; which, I respectfully insist, is contrary to all precedent. The two companies occupied the relative legal positions that usually exist between shippers and common carriers and nothing more. As the relation of master and servant did not exist in the remotest degree between the railway company and the deceased, all that this company could legally exact of him, while he was engaged in the handling of its cars was that he exercise ordinary care for his own safety, and this he was bound to do before he could complain of the negligence of the company.

There are only two questions involved in appellant’s plea of contributory negligence, and they were questions of fact for the jury. The first is, were the defects in the braking apparatus of these two cars so open, plain, and obvious that the deceased, by the exercise of ordinary care, would have discovered them, and did he in moving the cars exercise that degree of care and caution that men of prudence, skilled in that kind of work, usually observe when engaged in its performance? And, second, were the risks and hazards incident to, and which naturally arose from, the taking of two empty cars, coupled together, down the incline above the ore chute by one man experienced in the work, so great that a man of ordinary prudence, understanding and appreciating such hazards and dangers, would not attempt its performance?

The trial court gave the following instructions, wherein the law applicable to the facts is correctly stated:

“You are further instructed that in respect to the instructions which it is claimed on behalf of the defendant railway company were given to the deceased, John P. Smith, at the time he entered upon his employment, that if you believe from the evidence such instructions were given, the mere violation of or neglect to observe such instructions was not contributory negligence on the part of said John P. Smith; but if you believe from the evidence that at the time in question said John P. Smith violated or neglected to observe any of these instructions, and further believe from the evidence that in the violation or neglect of the same he was, under the circumstances of the case, guilty of a failure to exercise reasonable care for his own safety, and that except for such failure on his part the accident in question would not have happened, then he was guilty of contributory negligence, and the plaintiffs in this action cannot recover.

“You are further instructed that it was the duty of the deceased to inform himself of the dangers peculiar to the work in which he was engaged, and it was his duty to go about his work with his eyes open. It was his duty to use ordinary care to learn the dangers which were liable to beset him in his employment. If, therefore, you believe from the evidence that the injuries to and death of the deceased resulted from being exposed to dangers which were known to him, or which could have been known to him by the exercise of ordinary care on his part, then the plaintiffs can not recover in this action.”

The authorities cited in the opinion written by Mr. Justice BARTCH are eases wherein the rules of law relating to master and servant governed, but which I contend can have no application in this case, as the deceased and the appellant stood in the same relation to each other as the servant of the shipper does to the common carrier, which is entirely distinct from that of master and servant.

Few cases arise wherein there is a sharper and more substantial conflict on all of the material issues than is shown to exist in this action; therefore it would have been an unwarranted invasion of the province of the jury for the court to have given the peremptory instructions asked for by appellant.

The court gave the jury the following instruction: “The ears were operated to and from a point immedi-. ately underneath the chute from the orehouse by the power of gravitation, and the evidence shows that the method employed by Smith was to ‘pinch’ the cars with a crowbar in order to set them in motion, and that he would bring them to a stop by the use of the hand brakes.” Appellant excepted to this instruction, and now assigns the giving of it as error. By an examination of the record it will be seen that there is a sharp conflict in the evidence as to whether the cars were set in motion by the use of a pinch bar or started of their own accord by the power of gravitation. ' Therefore the giving of the instruction was error.

I am of the opinion that the case should be reversed, with costs, with instructions to the trial court to grant a new trial, and permit the parties to amend their pleadings should they so desire. I concur in the reversal.